Film questions Texas death penalty arson case

Throughout “Incendiary,” a new award-winning documentary, filmmakers pose a tough question with potentially huge consequences: Was a man wrongfully executed because of outdated arson investigation methods?

The movie surrounds the 2004 Texas execution of Cameron Todd Willingham after his murder conviction in the house fire deaths of his three young children.

Directed by Joe Bailey Jr. and Steve Mims, it goes behind closed doors to visually document how Gov. Rick Perry and the Texas Forensic Science Commission handled the case.

It also examines a broader question: How accurate are criminal arson investigations? The filmmakers say it’s a question crucial to the convictions of hundreds if not thousands of prison inmates nationwide.

Bailey, a 29-year-old law school graduate and first-time filmmaker, told CNN the documentary was inspired by a New Yorker article by David Grann and just took off from there. It starkly illustrates how officials review death penalty cases, Bailey said, and American society’s complicated relationship with science.

CNN: In what context do you see your film? Is it a mystery? A tragedy?

BAILEY: We always say it’s equal parts murder mystery, forensic investigation and political drama. What we found so fascinating about the case and the story was the way that law and science and politics collide in this story in a really kind of life and death struggle.

So I think that the film from the beginning added perspective that was really different from a lot of other miscarriage-of-justice genre films in that we weren’t as concerned as much with any protagonist in the way of the defendant. We were more interested in the professionals surrounding the case and the sort of societal struggle that was going on over the case.

There are little nuances about the case that make it really interesting in that way. The first thing being that the science is such an elemental part of the story. If we don’t have the forensic evidence pointing toward arson, there never would be a case, we wouldn’t have a crime.

In most of these stories, you have a crime and maybe they found the wrong guy. In this case, there isn’t any evidence of a crime in the first place. That’s kind of a unique thing and an interesting thing to dissect, even before you get into everything that happened after the conviction.

CNN: Does the fact that Gov. Perry is running for president change the way people might see this documentary?

BAILEY: Absolutely. [laughs] I think the actual experience of watching the film is very much the same as it was, and people react to it in a similar way they did before he announced.

Our first public showing was at South by Southwest in March, and that was well before anybody had any idea whatsoever that he was even vaguely considering it.

And the film did really well there. It won the Louis Black Award and sold out just about every theater it played during the festival. We got great feedback then.

I think that it definitely gave more of a hook for the national audience and got a lot more people curious about the film. I think once they see the film they’ll realize it’s not really about the governor. But I think it’s great that that’s there to get people interested.

CNN: How if at all does the film fit into the media mosaic of the 2012 election?

BAILEY: I think that early on there was a lot of discussion in the early primary about science and the role of science. [Republican presidential candidate] Jon Huntsman talked a lot about how denying climate change isn’t a modern view that a presidential candidate should hold.

I think this story is definitely consistent with a difficulty we have in American society with science. Our relationship with science is complex, and this story is a lot about that.

There’s a little bit about what you might call the executive model of governance, the assumption that everything in the process has taken care of itself, or not necessarily taken care of itself, but that people have dealt with something before it reaches the president – for instance – or the governor.

I think that’s something that this film brings out and reveals, and it’s kind of troubling that executives make assumptions about death penalty cases … I think there’s a lack of curiosity at work. Not just one person, but a systemic lack of curiosity in certain functions of our courts and our government, just to sort of make assumptions about the depth at which something has been considered before and not to re-examine something independently.

The funny thing about Gov. Perry is we don’t know how closely he scrutinized the Willingham case because those documents have not been released publicly. The Houston Chronicle has filed suit for the governor to disclose the legal memos and documents related to the Willingham case, and they’ve refused to do that.

But the interesting thing is that Gov. Perry’s office did release all of Gov. [George W.] Bush’s clemency documents. So you can actually go and read every line of every memo that Alberto Gonzales prepared for George W. Bush when he was governor regarding each clemency petition. But the Willingham case is not yet public.

CNN: How did your law degree affect the concept and production of your film?

BAILEY: I think it was really helpful in the sense that it gave us some confidence about the decisions that we made. I feel that a lot of people who are making films about legal things occasionally get things wrong, and it’s really frustrating. But more often they’ll gloss over the process and the legal meat of a subject because they’re afraid of it.

And I think that having some connection to that discipline and that community and being able to lean on [his attorney spouse] Alice, for instance, if I needed to know more about something I was kind of sketchy on – or on my old professors – that was really helpful and it let us really dive into it with more depth than you usually see.

CNN: In general, do most people know much about how arson investigations are conducted?

BAILEY: I have to assume that most people don’t have any idea about arson investigations. I know I sure didn’t.

If you have an expert testifying to something, a jury gives a lot of weight to that testimony. That’s something you learn in law school.

When techniques improve and when standards change, it really gives you pause and you think, wow how many cases have we conducted with a lesser standard or with a standard that was false?

It’s an important principle that we have in our justice system and as a society as a whole that when we make mistakes we correct them, and we use them as instruction for the future.

It’s fascinating for people to learn about fire investigation. It’s a whole world that people probably haven’t even thought about. But then it’s familiar to people – the idea that once we know something is wrong, we have to correct our mistakes. That’s pretty universal. That’s the thing that’s galvanizing in people’s minds about this story.

It gets people excited or people have sort of a dark sense of humor about it or they’re enraged. There are all sorts of different reactions that people have to the film.

There’s still an element of mystery to the case. The film never becomes too preachy or too didactic because there’s always that enigma that you’re always trying to piece together about what exactly did happen that day. And that’s great from a filmmaker’s perspective.

CNN: Do we know how many convicted people would be affected by changes to arson investigation laws?

BAILEY: In Texas it’s estimated at something like – I don’t remember the exact number — it’s like 750 cases or so – and they’re not all death row cases, and I don’t think there are very many that are death row cases.

One good thing to come out of all this is the Texas Forensics Science Commission was able to enter into an agreement with the Texas fire marshal’s office so it can pair up with the Innocence Project of Texas to go through all of those cases that they think might have a problem and really scrutinize them.

So that’s really great and helpful.

On a national scale its probably proportional. That’s one thing that Texas wasn’t an anomaly at all in the way that we conducted fire investigations.

There obviously were people who knew that all of that was wrong, that it had no basis in the scientific method. But mostly they weren’t in the field investigating fires; they were in the lab developing technologies for corporations or frankly doing more profitable things.

So it wasn’t until the mid-90s that the scientific knowledge which has been around for years – it’s basic physics thermodynamics – filtered down in the manual of fire investigation.

CNN: Do you see yourself as a journalist?

BAILEY: The film is sort of split. Half of it’s verite, half of it’s interviews, exposition and deconstruction of the case. There is kind of a code like the journalistic code of ethics about verite documentary. Yeah it’s a lot like being a journalist. I don’t know if I would call myself a journalist per se, but it’s very much akin to it, if not journalism itself.

CNN: What are some of your favorite documentaries?

BAILEY: I really love – and a lot of people compare our film to it in a way that kind of scares me – but I really love “The Thin Blue Line.” All of Errol Morris’ films are really close to my heart and Steve’s, too. I really like a lot of music films: “Don t Look Back,” the Bob Dylan film. “I Am Trying to Break Your Heart,” the Wilco film, is fantastic.

There’s one documentary that we really love, “The King of Kong.” A lot of it is sort of this one character behaving really badly on camera. There are points in our film where we thought it was reminiscent of that movie and the sort of bizarre comedy that unfolds where you see the tension in the room and the outsized characters. I think people are always surprised to see elements of humor in the film because it’s such a heavy topic. There’s a lot of it that’s sort of humorous. There are a lot of great portraits of characters that have a lot of comedy in them, too.

CNN: What’s your dream project?

BAILEY: That’s a tough question. I don’t know, this one was really fun. … There’s a project I sort of put on the shelf when I got to work on this one about Doug Sahm who’s kind of a patriarch of Texas music. I really want to get back into that project.

Steve is really great at comedy. He’s really great at narrative. It’d be fun to make a narrative film with Steve sometime. But I love documentaries. I think I’ll always end up getting pulled back into documentaries.